Marriage Separation NSW - FAQs


Marriage Separation – FAQ

Some of the most common questions we get asked following separation are as follows:

1. When can I apply for Divorce?

 You can lodge a Divorce Application subject to being separated for 12 months. If the parties reconcile within the 12 month period and the reconciliation extends for longer than three months, the 12 month time period restarts. If the parties reconciled within the 12 months, but for less than three months, the period of separation before reconciliation can be counted towards the 12 month period.

2. Can I stay in the marital home after separation?

Yes. Under section 49 of the Family Law Act (1975) parties to a marriage may be considered to be separated and to have lived separately and apart notwithstanding that they continued to reside in the same residence or that either party has rendered some household services to the other.

3. Do my spouse, and I have to go to Court to settle our financial and parenting arrangements?

No. If parties can reach an agreement about property division and parenting arrangements of their children, this agreement can be formalised through a Consent Order (for parenting and/or financial) or a Financial Agreement (financial only).

Consent Orders are lodged with the Court to be considered by a Registrar and will only be approved if the Registrar is satisfied that the orders sought are just and equitable. The Court considers a detailed ‘Application for Consent Orders’, which lists the assets, liabilities and contributions of the parties, as well as the parties’ income and the care of the children, before determining whether the proposed agreement is just and equitable.

Financial Agreements are not lodged with the Court and do not require the Court’s approval to be binding. Binding Financial Agreements, in effect, oust the jurisdiction of the Court by way of section 71A of the Family Law Act.

Parenting Orders are defined by section 64B of the Family Law Act and relate to where a child is to live, the time a child spends with another person and the circumstances of how that time is spent, parental responsibility, and any aspect of the care, welfare or development of the child.

4. Am I entitled to Spousal Maintenance?

Under the Family Law Act (1975), parties have a duty to support and maintain each other following separation or divorce. Spousal Maintenance is the ongoing financial support by one party to their former spouse. To determine whether a party is liable to maintain the other, the Court considers:

Whether the party making the application for spousal maintenance cannot support themselves by reason of:

*having the care and control of a child of the marriage ;

*Age or physical or mental incapacity for gainful employment; or

*By any other adequate reason

*Whether the party, which the application has been made against, is capable of maintaining the other party;

5. Is my ex-spouse required to pay child support?

Child support is dealt with by the Child Support Agency. The Child Support Agency assesses the amount of child support payable by reference to a statutory formula. The formula considers the taxable income of the parents, the number of children concerned, the age of the children and how many nights the children spend in the care of the parties. 

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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